Wednesday, March 16, 2016

Police negligence disentitled Crown to adjournment

R v Josephee 2016 NUCJ 8:[12] In our free and democratic society, police and prosecutors are entrusted with tremendous legal power and discretion. On a day-to- day basis, both institutions operate as independent agencies of the state. Their employees are sworn to uphold the law, and to protect the public. In recognition of the difficult roles they play, each agency is afforded special protections to secure their independence from outside interference. The delegation of this power and discretion, though, also comes with a corresponding responsibility. The authorities are required to act in all cases with due diligence and professionalism. One of the roles of this court is to hold the authorities publicly accountable for their actions in a way that defends the constitution while fostering confidence in, and respect for, the administration of justice. This court must also protect the right of all Nunavummiut under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], to a trial within a reasonable time. I must consider these fundamental principles as I assess whether the Crown is entitled to an adjournment of this case.

[13] On the facts before me, I find that the absent witness is material. However, the Crown did not present any evidence respecting the witness' present circumstances or whereabouts. Furthermore, the police and the local prosecution office were each negligent in the performance of their respective duties. Consequently, the Crown is not entitled to an adjournment.

[14] The negligence I have highlighted reveals a concerning lack of oversight within both agencies. Not only did the investigating officer fail to complete his investigation, but the file was processed and forwarded onto the prosecution without any evident internal review. Neither the investigating officer, in his affidavit, nor Crown counsel, offered any explanation for this situation. No evidence was called concerning internal Royal Canadian Mounted Police checks to ensure quality control. Whatever system may have been in place in September, 2015, it failed to catch and correct this obvious deficiency in the investigation.

[15] This is not the first instance where this court has been made aware of incomplete police investigations. Indeed, there was another case scheduled on March 3rd, where the very same issue arose. In that case, the police had failed to attempt to obtain a statement from another obviously relevant witness. They also failed to seize evidence at the scene. The prosecutor was obliged to present her case without the assistance that the witness and evidence would have afforded.

[16] This regrettable situation was compounded by the negligence of the prosecution office. Both Crown and Defence counsel stated that it was immediately obvious to them that the investigation was incomplete. They had good reason to come to that conclusion. Why, then, was that obvious deficiency not discovered and addressed by the Crown in a timely manner? Again, Crown counsel did not offer any explanation. The Court is left to guess. In our justice system, the Crown is required by law to assess and to evaluate its prospects of conviction at each step in the process, not just one week before trial. The failure to do so in this case was negligent.